FMLA vs. the ADA

Although the Family Medical Leave Act (FMLA)* and the Americans with Disabilities Act (ADA) are distinct Acts, it can be difficult to determine if an employee qualifies for FMLA or ADA depending upon the situation. The following outline highlights some of the key differences between the FMLA and the ADA.

  • The Purpose of the Acts
    • FMLA – enacted in 1993 to provide job-protected leave to employees.
    • ADA– enacted in 1990, and amended in 2008, to prohibit discrimination against disabled individuals.
  • Covered Employers
    • .FMLA - private employers with 50 or more employees on the payroll for 20 or more calendar workweeks (which do not need to be consecutive) in either the current or proceeding calendar year.
    • ADA- private employers with 15 or more employees on their payroll for 20 or more calendar workweeks (which do not need to be consecutive) in either the current or proceeding calendar year.
  • Eligible Employees
    • FMLA- an employee must have worked for a covered employer for at least 12 months (which do not need to be consecutive) and at least 1,250 hours during the 12 months preceding the first day of the requested leave.
    • ADA – there is no minimum length of employment before an employer’s duty to accommodate is triggered, but the employee must be a qualified individual with a disability.
  • Qualifying Reasons
    • FMLA - eligible employees may take FMLA leave for the following reasons:
      • To care for a spouse, child, or parent with a serious health condition or for the employee’s own serious health condition;
      • The birth, adoption, or foster placement of a child;
      • Military-related leave involving;
        • A qualifying exigency for a family member on covered active duty status or call to covered active duty; or
        • To care for a covered service member with a serious injury or illness (a/k/a military caregiver leave).
    • ADA - To be entitled to accommodation, an employee or applicant must be a qualified individual with a disability. A qualified individual:
      • Satisfies the requisite skill, experience, education, and other job-related requirements of the position the individual holds or desires; AND
      • With or without accommodation, can perform the essential functions of the position the individual holds or desires.
  • Serious Health Condition OR Disability
    • FMLA- A serious health condition is an illness, injury, impairment, or physical or mental condition that involves:
      • An overnight stay in a hospital, hospice, or residential medical care facility or any subsequent treatment in connection with inpatient care;
      • Any period of incapacity for more than 3 consecutive full calendar days and any later treatment or incapacity required or caused by the same condition that also involves either: (1) two treatments, with a treatment defined as an in-person visit to a Health Care Professional (HCP) (the first treatment must occur within 7 days of the first day of incapacity); or (2) one treatment by a HCP who prescribes continuing treatment;
      • Periodic incapacity because of pregnancy, including morning sickness or prenatal care;
      • Chronic conditions such as migraines, depression, or diabetes that require at least 2 visits per year to an HCP; continue over an extended period; and cause episodic incapacity;
      • Permanent or long-term incapacity resulting from a condition for which treatment may not be effective (e.g. Alzheimer’s disease);
      • Conditions that require absence to receive multiple treatments for restorative surgery after an accident or injury, or a condition that, without medical treatment, would most likely cause a period of incapacity of more than 3 consecutive days (e.g. cancer).
    • ADA: Disability is defined as either:
      • A physical or mental impairment that substantially limits one or more of the major life activities of the individual;
      • A record of this kind of impairment; or
      • The employer perceives the employee as disabled.
  • Leave Entitlement
    • FMLA provides:
      • Up to 12 weeks of unpaid leave during an employer-specified 12-month period, if the leave is not for military caregiver leave.
      • Up to 26 weeks of unpaid leave in a single 12-month period for military caregiver leave.
    • ADA: The ADA does not mandate paid or unpaid leave, or any specific amount of leave. However, unpaid leave may be a reasonable accommodation for an eligible employee if:
      • There is no other effective accommodation; AND
      • The leave does not cause an undue hardship on the employer.
  • Employer Response Requirements
    • FMLA: An employer must provide the employee:
      • A notice of eligibility and rights and responsibilities within 5 business days (absent extenuating circumstances) of an employee’s request for FMLA leave or the employer learning through other means of the employee’s need for leave that may be FMLA-qualifying
      • A designation notice within 5 business days of the employer having enough information to determine whether the employee’s leave is FMLA qualifying that:
        • States that the leave (specifying the amount) has been or has not been designated as FMLA qualifying;
        • If the employer requires additional information to determinate qualification, explains what additional information is needed/required;
        • States any requirement for substitution of paid leave; and
        • If applicable, includes requirements for fitness-for-duty certification
    • ADA: Once an employer receives a request for a reasonable accommodation, the employer must respond promptly. The employer should:
      • Engage in the interactive process as quickly as possible with the individual with a disability; and
      • Promptly provide a reasonable accommodation, absent undue hardship (but it does not have to be the specific accommodation requested).

Regardless of whether an employee’s situation falls under the ADA or FMLA, it is important for an employer to accurately monitor and document the situation. If you have questions as to whether an employee qualifies for FMLA or ADA, contact a member of Barrett McNagny’s Labor and Employment team.

*Please note that the Emergency Family and Medical Leave Expansion Act, which expires on December 31, 2020, applies to all employers with 25 or more employees. Any employee who has been employed for at least thirty (30) calendar days is eligible for Public Health Emergency Leave, which may be used to allow the employee to care for a child (under 18 years of age) if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency declared in respect to COVID-19 by a federal, state, or local authority.

About the Author:

Rachel Steinhofer concentrates her practice in the area of labor and employment. She works with business owners and human resources professionals on a variety of labor issues including employment discrimination, personnel policies and records, employee discipline and discharge, workplace privacy issues and wrongful discharge. She can be reached at (260) 423-8832. 

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